Citation Nr: 1325560	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  10-05 605	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for a skin disorder.

4.  Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD).

5.  Entitlement to service connection for pancreatitis, to include as secondary to in-service herbicide exposure.

6.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for Type I diabetes mellitus, to include as secondary to in-service herbicide exposure and as secondary to the non-service-connected pancreatitis.



REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to February 1971.  The Veteran served in the Republic of Vietnam (Vietnam) during the Vietnam Era and was awarded the Combat Action Ribbon for his service. 

The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal.  The Veteran filed a Notice of Disagreement (NOD) in November 2009.  The RO issued a Statement of the Case (SOC) in January 2010.  In February 2010, the Veteran filed his Substantive Appeal.  Thus, the Veteran perfected a timely appeal of these issues.

The Veteran originally requested a Board hearing on his June 2010 Substantive Appeal (on VA Form 9).  However, in a June 2010 statement, the Veteran withdrew his request for a Board hearing and instead requested a hearing before the local Decision Review Officer (DRO).  The Veteran was provided his DRO hearing in August 2011, and a transcript of the hearing has been associated with the claims file.

The Board notes that the psychiatric claim on appeal has previously been developed to include only PTSD.  The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a mental health disorder claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As such, the claim on appeal has been recharacterized as an acquired psychiatric disorder, to include the Veteran's current psychiatric diagnosis of depression.

The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file.

The issues of: (1) entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD; (2) entitlement to service connection for pancreatitis, to include as secondary to in-service herbicide exposure; and, (3) whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for Type I diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In August 2011, following the February 2010 Substantive Appeal, but prior to the promulgation of a decision on the appeals, the Board received notification from the Veteran that a withdrawal of the appeals pertaining to the claims of entitlement to service connection for hypertension, sleep apnea, and skin disorder was requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for hypertension have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for sleep apnea have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

3.  The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for a skin disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn his appeals pertaining to his hypertension, sleep apnea, and skin disorders claims in an August 2011 statement, following the February 2010 Substantive Appeal that perfected his appeals.  Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues.  Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed.


ORDER

The appeal pertaining to the claim of entitlement to service connection for hypertension is dismissed.

The appeal pertaining to the claim of entitlement to service connection for sleep apnea is dismissed.

The appeal pertaining to the claim of entitlement to service connection for a skin disorder is dismissed.
REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated.   

Regarding the pancreatitis claim, at his DRO hearing, the Veteran testified that in 1995 he received regular private treatment from Scott and White medical providers in Belton, Texas, for his pancreatitis.  To date, the RO has not made an attempt to obtain these private treatment records, and they are not currently of record.  Upon remand, the RO/AMC should obtain these private treatment records, as they are pertinent to the Veteran's claim.  See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002).

Additionally, the Board finds that the Veteran should be afforded a VA examination to determine the etiology of his pancreatitis.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  Here, the Veteran has a current diagnosis of pancreatitis, according to the VA Medical Center's (VAMC's) list of current diagnoses.  The Veteran is also presumed to have been exposed to herbicides during his active military service, as he was stationed in Vietnam during the Vietnam Era.  38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307 (2012).  To date, the Veteran has not been afforded a VA examination and medical opinion for this claim, to include an opinion regarding whether his current pancreatitis is related to his presumed in-service herbicide exposure.  See McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006).

Furthermore, the Veteran's most recent, pertinent outpatient treatment records from the VAMC in Central Texas Health Care System are dated in September 2009.  Upon remand, all pertinent records since September 2009 must be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005).

Finally, regarding the diabetes mellitus claim, the Veteran asserts that this disorder is secondary to pancreatitis.  The Board finds that the development requested in this remand for the pancreatitis claim must be completed prior to the adjudication of the diabetes mellitus claim, as adjudication of the pancreatitis claim may affect the adjudication of the diabetes mellitus claim.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all pertinent VA outpatient treatment records from the Central Texas Health Care System VAMC since September 2009 that have not been secured for inclusion in the record.

Ensure that the Veteran has not been recently treated by any other local VAMCs.

If no new records are associated with the claims file, a written determination should be included in the claims file.

2.  Contact the Veteran to obtain the specific names and addresses of his private medical providers for the disorders on appeal.  Following the Veteran's release of these private treatment records, obtain and associate the records, to include the records from Scott and White medical providers in Belton, Texas.

If no new records are associated with the claims file, a written determination should be included in the claims file.

3.  After obtaining the above records, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his current pancreatitis.  The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs.  The VA examiner should note that this action has been accomplished in the VA examination report.  The VA examiner is requested to specifically address the following:

Is it at least as likely as not (a 50 percent probability or greater) the current pancreatitis was incurred in or is otherwise related to the Veteran's active military service, to include his presumed in-service herbicide exposure?  

The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

4.  After the above actions have been completed, readjudicate the Veteran's claims.  If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC).  Afford them the appropriate period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs